Anyone who has filed a permanent labor certification application knows that there are substantial backlog problems throughout the United States. In an effort to address the backlog of nearly 300,000 pending applications, the U.S. Department of Labor (DOL) started a pilot program in 2002 geared toward centralized processing of labor certifications (LCs) through the Central Processing Group (CPG). The draft training manual for such centralized processing of cases, dated April 2003, recently became available for review. The recent release of this manual provides insight into what could be a significant overhaul of the labor certification processing procedures. As explained below, this manual does not touch upon the PERM program that will again change the existing law and procedures for labor certification processing, hopefully by sometime in early to mid 2004. The goal of CPG is improve processing procedures, to clear out the backlog of regular LC or RIR cases. The goal of PERM is to completely overhaul the entire labor certification process, through changes in law and the use of electronic filing. The explanations below are only applicable to the CPG backlog reduction efforts in regular LC and Reduction in Recruitment (RIR) cases.
Centralized Application Processing System (CAPS)
The DOL tested the centralized processing program, through a pilot reduction center in Gaither*****urg, Maryland. The MurthyBulletin touched on the backlog reduction program in our article, Department of Labor Update - October 2003, available on MurthyDotCom. A review of the current labor certification processing times, which are often measured in years, underscores the need for substantial improvements in current procedures. These processing times are accessible through MurthyDotCom.
The centralized processing concept grew out of a 2001 commissioned review of the labor certification process. The current system involves filings of permanent labor certification applications at the local level, at one of fifty-four (54) State Workforce Agencies (SWAs). A SWA reviews an LC application for general sufficiency, requesting additional information, if required. If nothing further is required, it will forward the application to the applicable Regional Office of DOL for final review. There are 10 DOL designated Regional Offices that have the authority to render a final determination on a permanent labor certification application within their jurisdictions. These offices are part of the Employment Training Administration (ETA) division of the DOL.
The current system has led to inefficiencies in the processing of permanent labor certification applications and substantial differences in processing times, depending on place of filing. The CPG hopes to address these differences and problems. The most notable change will be the elimination of the two-tier, local and regional processing system. In centralized processing, the entire case review and adjudication occurs at one processing center. One office is responsible for the entire process, from data entry to the final decision. The hope is that this will create national uniformity in the processing of cases, the amount of recruitment required for each case, and the time from filing to decision. To test the viability of centralized processing and to develop procedures, the previously mentioned six-month simulation study took place in Gaither*****urg, Maryland. During this study, approximately 1,500 real labor certification applications were adjudicated. The manual is the result of that six-month study.
Team Approach
The manual is broken down into a number of sections, including: Centralized Application Processing System (CAPs); The High-Speed, High-Volume Model; Data Entry; Prevailing Wage Review; Recruitment; Troubleshooting; and Determinations. Determinations include Notices of Findings, Certifications (approvals), and Denials. Each of these tasks is performed by a separate "team." This is the model around which the processing is built. For example, one team enters the data, another team supervises traditional recruitment efforts, and a third team reviews RIR applications. The troubleshooting team is responsible for the more difficult or "special" cases. This would include cases with prevailing wage challenges, appeals, and rebuttals to Notices of Findings. The Quality Control team will reenter data on randomly selected cases, as a spot check for errors. They will also track sources of errors.
Unduly Restrictive
The manual sets forth standard procedures for each type of review. For example, in keeping with long standing labor certification requirements, the job offer is reviewed for "unduly restrictive requirements." The manual explains that the job duties must be consistent with those defined for the job in the Standard Occupational Codes (SOC) and those "normally required for the job in the United States." The SOC information is available online. The job requirements will be deemed to be unduly restrictive if they require skills, knowledge, abilities, or conditions of employment that are not normally required to perform the work in the occupation. The employer can overcome this by documenting that the requirements arise from a business necessity. If the job is believed to be unduly restrictive, a letter will be issued and the employer will be able to amend the requirements or document the need for the restrictive requirements. Again, this is not a change from current law. The manual just sets out the process for the case worker or SWA analyst.
Recruitment
Recruitment efforts are always a key component of the labor certification process. The manual includes instructions for both Regular and Reduction in Recruitment cases. For RIRs, there must be a written request for RIR treatment by the employer or attorney. There must be a description of recruitment efforts made within the 6-months prior to filing the case, but no fewer than 30 days before filing. To be considered for RIR, there must be a minimum of one print ad in a newspaper of general circulation or a relevant journal, as well as at least two other recruitment activities, showing a pattern of recruitment. The case must be accompanied by a recruitment report containing the number of applications and the lawful, job-related reasons for not hiring the U.S. applicants.
The manual instructs the analyst to review recent layoffs as part of the decision regarding whether a case should proceed as an RIR. The analysts are instructed to obtain information on layoffs occurring in the labor market. If the analyst cannot obtain information regarding layoffs at the time the test of the labor market occurred for the RIR, s/he must verify whether there were layoffs in the last six months. If it is believed the employer may have had a layoff, the analyst must issue a Notice of Findings asking whether the layoff included workers in the requested occupation in the geographic area of intended employment. If the answer is "no," the case will be approved. If the answer is "yes," the employer must provide a list of laid off workers and the reasons they were not hired for the offered position.
The analyst could otherwise conclude that there is a likelihood of available U.S. workers, which could be based upon layoffs by other employers in the area of intended employment. In that event, the employer will receive a letter allowing for additional advertisement or opting to process the case as a regular LC case. If the employer re-advertises, and there are no qualified U.S. workers, the application will be approved. It should be noted that the manual, because it was drafted in April 2003, does not take into account a November 20, 2003 Memorandum from William L. Carlson, Chief, Division of Foreign Labor Certification. This Memorandum directed that the DOL not “look back” for layoffs for applications which require at least a Bachelor’s Degree and three or more years of experience or a Master’s Degree and six months of experience. We wrote about the Memorandum in our November 28, 2003 MurthyBulletin article, DOL Update on RIR Processing Guidelines, available on MurthyDotCom.
Case backlogs have long been a problem for employers, foreign nationals, and immigration practitioners. We welcome improvements in the processing of cases, as do our clients. We hope that the program works to provide timely resolution of labor certification applications. If the cases are adjudicated in a reasonably prompt manner, the problem of changes in the job market between filing and adjudication will be eliminated, or at least greatly reduced. It should largely reduce the need to re-advertise, because the market test and adjudication will be sufficiently close in time. It should also eliminate a great deal of uncertainty, both for employers and foreign nationals. We will be following this program closely and will report any significant updates in the MurthyBulletin and on MurthyDotCom.